News Feature | December 11, 2013

Texas Groundwater Regulations Under Scrutiny

San Antonio is among a growing contingent that wants Texas to wrest control of groundwater policy from localities.

Currently, the state's groundwater rules are pretty complicated.

"At a time when thirsty cities and industries are clamoring for groundwater more than ever, the resource is regulated by nearly 100 entities drawn along political boundaries such as county lines, in part because groundwater is considered a private property right in Texas. By contrast, Texas’ rivers and lakes — anything that flows above ground — are owned by the state and therefore regulated centrally," the Texas Tribunereported this week.

It has been this way since 1949, when the state opted for local control of groundwater, the report said.

But now, as the state faces crippling drought conditions, there is some momentum for changing the system. San Antonio, which is on the hunt for new water sources, is pushing for reform.

“The notion that this can be done by 100 different, locally elected, county-based groundwater districts simply no longer makes sense,” Steve Kosub, a lawyer for the San Antonio Water System, said in the report. He argued that the state should play a greater role in groundwater regulation.

Texas is not the only state that has a history of complicated groundwater rules. Across the U.S., groundwater rules were written separately from surface water regulations in the U.S., according to a report by researchers at the University of Michigan.

Most states are like Texas: Groundwater was originally governed by the "rule of capture," meaning whoever owns the land gets the water.

But unlike Texas, many states have moved away from that model. "Today, we have a better understanding of groundwater flow and its effects on surface water. Most state courts have overturned the rule of capture, although a few still apply it," the report said.

Advocates for change say the "rule of capture" is old-fashioned.

"There is increasing dissatisfaction in Texas with the groundwater rule of capture. Nearly all other states abandoned it long ago," researchers at the University of Texas at Austin wrote in a report

One argument for preserving the rule is that "it leaves the market free to allocate water to uses regarded by the market as most valuable. In the short run, the rule of capture may accomplish this objective," they said.

But there are also drawbacks, they noted: "Eventually [the rule's] lack of restraint leads to diminishing, and eventual depletion, of the available supply of aquifers. In other words, some enterprises using groundwater shift some of their costs to others."

For more on Texas water policy, check out Water Online's coverage of a recent decision to devote $2 billion in state funding to water projects.